Excerpt:limitation act (ix of 1908), schedule i, articles 62, 120 - debt due to deceased received by one of his heirs--suit by other heirs to recover their share--limitation. - - 233 it was held that a suit like the one before us was governed by article 62. in his judgment in that case tudball, j......decision in kundan lal v. bansi dhar 3 a. 170 but considered itself bound by the decision of the privy council in mahomed riasat ali v. hasin banu 21 c. 157 : 20 i.a. 155 to hold that the suit was governed by article 120. it seems to us that the decision of tire privy council in the case mentioned had no application to the facts of the case of umardaraz ali khan v. wilayat ali khan 19 a. 169 : a.w.n. (1897) 34. the case before the privy council was one in which the widow of one mosheraf ali claimed the moveable and immoveable property of her husband from a brother of the deceased who had taken possession. their lordships held that the claim to cash and moveables was governed by article 120. article 62, which, of course, had no application to the claim for moveables, does not seem to.....

Judgment:

1. This is an appeal against an order of remand passed by the District Judge of Budaun. The facts are that one Najmuddin died in July 1901 leaving a widow, Zebunnissa, a brother, Hamiduddin, and two nephews, Abdul Gaffar and Zahiruddin. In March 1903 Abdul Gaffar obtained a succession certificate in respect of the debts due to the deceased. Zahiruddin died in 1906 and his rights devolved directly or indirectly upon the plaintiff-respondent, Nur Jahan Begam, who in July 1913 brought the present suit against Abdul Gaffar claiming an account of all sums received by him as holder of the succession certificate and payment of what might be found due to her. The Subordnate Judge dismissed the suit, holding that it was governed by Article 62 of the first Schedule to the Limitation Act, and was barred by that Article, inasmuch as it was proved that no sum had been received by Abdul Gaffar within three years of the suit. On appeal the District Judge held that the suit was governed, not by Article 62, but by Article 120 and remanded the suit for trial on the merits.

2. The District Judge has relied upon the decision of this Court in Umardaraz Ali Khan v. Wilayat Ali Khan 19 A. 169 : A.W.N. (1897) 34. The facts of that case do not differ in essential particulars from the facts of the present case, except that the defendant in the present case obtained a succession certificate whereas the defendant in that case does not seem to have done so. The Court was disposed to follow the decision in Kundan Lal v. Bansi Dhar 3 A. 170 but considered itself bound by the decision of the Privy Council in Mahomed Riasat Ali v. Hasin Banu 21 C. 157 : 20 I.A. 155 to hold that the suit was governed by Article 120. It seems to us that the decision of tire Privy Council in the case mentioned had no application to the facts of the case of Umardaraz Ali Khan v. Wilayat Ali Khan 19 A. 169 : A.W.N. (1897) 34. The case before the Privy Council was one in which the widow of one Mosheraf Ali claimed the moveable and immoveable property of her husband from a brother of the deceased who had taken possession. Their Lordships held that the claim to cash and moveables was governed by Article 120. Article 62, which, of course, had no application to the claim for moveables, does not seem to have been mentioned at all. The cash in question had not been received from any one, but had been seized by the defendant upon his brother's death. We do not think that the decision of the Privy Council obliges us to hold that such a case as this is governed by Article 120. In the recent case of Amina Bibi v. Najmunnissa Bibi 27 Ind. cas. 712 : 13 A.L.J. 255 : 37 A. 233 it was held that a suit like the one before us was governed by Article 62. In his judgment in that case Tudball, J., referring to the case of Umardaraz Ali Khan v. Wilayat Ali Khan 19 A. 169; A.W.N. (1897) 34 said that Article 62 was not mentioned at all in the judgment in that case, but he must have overlooked the last paragraph of the judgment at page 172 of the report, where Article 62 was mentioned and was held to be inapplicable on the strength of the decision of the Privy Council. The decision in the case of Umardaraz Ali Khan v. Wilayat Ali Khan 19 A. 169 : A.W.N. (1897) 34 is a direct authority in favour of the respondent's contention, but for the reason already stated we think that the Court was wrong in supposing that the point was covered by the decision of the Privy Council. We prefer the later decision in the case of Amina. Bibi v. Najmunnissa Bibi 27 Ind. cas. 712 : 13 A.L.J. 255 : 37 A. 233 which is supported by the decisions in Parsotam Rao v. radha Bai 28 Ind. Cas. 953 : 13 A.L.J. 407; Masihuddin v. Imtiazunnissa Bibi 27 Ind. Cas. 533 : 12 A.L.J. 1256 : 37 A. 40 and Mahomed Wahib v. Mahomed Ameer 32 C. 527 : 1 C.L.J. 167. The circumstance that the defendant-appellant held a succession certificate does not appear to us to differentiate the case from cases in which one of several heirs receives payment of a debt due to the deceased, though he does not hold a succession certificate.

3. In our opinion the Subordinate Judge was right in holding that the suit was barred by limitation. We allow this appeal, set aside the order of the District Judge and dismiss the suit with costs throughout. Costs in this Court will include fees on the higher scale.